Wikipedia:Featured picture candidates/Les Demoiselles d'Avignon

Les Demoiselles d'Avignon, second nomination
Voting period ends on 21 Jul 2011 at 23:58:57 (UTC)
 * Reason:Image is of a high resolution, historically significant, and used on numerous articles (including lead image in 3). Colour is good, and it is a fine representation of cubism
 * Articles in which this image appears:Les Demoiselles d'Avignon; Picasso's African Period; Opening of the Fifth Seal; Art of El Greco; El Greco; Posthumous fame of El Greco; Cubism; Modernism; Pablo Picasso; Jacques Seligmann & Company; Museum of Modern Art; Prostitution in Spain; Fernande Olivier; 1900s (decade); Modern Art; History of painting; Figurative art; Western painting; 20th-century art
 * Category: Featured pictures/Artwork/Paintings
 * Creator:Painted by Pablo Picasso, uploaded by Olpl


 * Support as nominator --Crisco 1492 (talk) 23:58, 12 July 2011 (UTC)
 * Original nomination was denied due to copyright concerns. It seems to me that such concerns have been settled, with the work being reproduced in 1910 and being distributed for public display in 1916, both of which would make it public domain. The original nomination can be found here. Crisco 1492 (talk) 23:58, 12 July 2011 (UTC)
 *  Tentative support. I looked at the evidence and it does look like it was in that one 1910 publication.  (although would feel better with a pdf than the online thingie).  What I would do is just nominate it for Deletion to tee up the debate.  (Not meant as any kind of abuse, but I have found this helps us decide what we are comfortable with as a Project.  After that, I think FP should just go with wherever the community came out.  And then it is not the end of the world if there is some take-down.  After all, it IS already being shown on our website.  That's the bigger concern, not if we put a gold star sticker on it.)  I can even ask some of the Commons shmarties like Dcoetzie, Darwin, Clindburg, Jack Lee to stop by the en-Wiki discussion and give their take.TCO (reviews needed)  00:16, 13 July 2011 (UTC)
 * Hopefully they can help us clear it up once and for all. Crisco 1492 (talk) 00:20, 13 July 2011 (UTC)
 * I just reread the debate. I'm comfortable with it.  If someone here is not, he should put it into PUF or even just FFD.
 * Support We only need to follow the US rules here as far as I know. JJ Harrison (talk) 08:15, 14 July 2011 (UTC)
 * Oppose . I'm still not comfortable with rejecting the copyright claim on this work. The version that was published in Architectural Record was in black and white, and thus a separate derivative work. Since the original color version was still copyrighted in France in 1996, then its copyright in the US would be restored under the URAA, while the black and white derivative would remain public domain. I'm not a lawyer, so I don't know if this analysis holds water, but neither do I feel sufficiently comfortable with any of the other analyses. I would at least like to hold off until Golan v. Holder is decided and then revisit if necessary. Kaldari (talk) 01:33, 15 July 2011 (UTC)
 * Does the publication have to be in its original format, or would the publication of a derivative work count as publication of the image itself? I doubt that's spelled out in the law or case law, but... Crisco 1492 (talk) 02:49, 15 July 2011 (UTC)
 * If this fails FPC, I'm re-running it through deletions and getting input from the "heavies" that I mentioned.TCO (reviews needed) 02:53, 15 July 2011 (UTC)
 * I don't think the colors matter; The Copyright Office says that "The regulation also prohibits registration of multiple colored versions of the same basic design or work." and made a "close, narrow" decision to give new copyright to the colorization of a whole movie.--Prosfilaes (talk) 16:28, 16 July 2011 (UTC)
 * I don't completly understand. Feels like the first part of what you say "doesn't matter" conflicts with the second part.  Also, I think there is a different situation here.  In the cited case, a new work of art was produced (painting colors onto a black and white photo).  Here Kaldari raises the question of whether a black and white photo constitutes publication of the original image.  (BTW, would think the much bigger issue is our usage of the work in 19 articles, some pretty high hit count, rather than gold star sticking on.  So if peeps here really don't like it, why isn't it not getting thrown back into PUFD?  On the other hand if we did the best we could, had the community examine it and the decision was "OK", then I think we ought to just evaluate it here, based on EV/art.  I think this is a very different situation than an obscure image where our process here for the first time raises questions abou rights.)TCO (reviews needed)  16:37, 16 July 2011 (UTC)
 * The Copyright Office dislikes using color differences so much that creating a new colorized movie was a narrow decision; you're talking about the differences on one picture. Turning it black and white doesn't make a new copyright (as that page says), so the painting has to have the same copyright.--Prosfilaes (talk) 18:15, 16 July 2011 (UTC)
 * I think I'm getting you. Basically, you are saying B&W publication "is publication" of the original image.  No?TCO (reviews needed)  18:30, 16 July 2011 (UTC)


 * A black and white version would not have enough expression to be a derivative work. And really, when a black-and-white photo is published by authorization, it's pretty hard to argue an unpublished status of the original I think.  This copyrightdata.com page basically says the same thing -- in their "indisputably published" category (based on court decisions over the years), they have: Sale of authorized copies to the public (These needn’t be full size — may include postcards, black-and-white photos of color paintings, 3D paperweight reproductions of large sculptures).  Courts have also made sure that a movie could not maintain unlimited copyright by virtue of being a derivative of an unpublished screenplay -- the original is deemed published, at least as much as was incorporated in the movie.  Arguing on the colors is pretty thin, in my opinion.   If the 1910 publication was authorized, that would seem to be it (and it may even cause the U.S. to be considered the country of origin, or at the very least mean the work is not eligible for URAA restoration). Carl Lindberg (talk) 19:00, 16 July 2011 (UTC)
 * Well, I guess since they specifically list black-and-white photos of color paintings I can't argue with that. Striking my oppose vote. Hopefully the Supreme Court will strike down the URAA and we won't have to worry about this any more, although I suppose that is something of a long shot. Kaldari (talk) 19:00, 17 July 2011 (UTC)
 * Support unless someone comes up with a good reason why the image is copyrighted (I am convinced by the public domain arguments so far). Technically good, can find no flaws in the digitization. - Running On Brains (talk) 04:26, 17 July 2011 (UTC)
 * Comment I have asked Moonriddengirl for her opinion regarding the copyright status of the image. Crisco 1492 (talk) 04:56, 17 July 2011 (UTC)
 * This could be complicated. :/ Robert M. Kunstadt in "Can Copyright Law Effectively Promote Progress in the Visual Arts" wrote that "publication of black and white photographs of a painting surely could not effect publication of the painting's color scheme; when the black and white photographs entered the public domain, copying of the underlying painting's color scheme would still be prohibited by common law copyright." (Reproduced in volume 25 of Copyright Law Symposium (1980; Columbia University Press; ed. American Society of Composers, Authors and Publishers, p. 171) He acknowledges Letter Edged in Black Inc., v. Public Building Commission of Chicago, cited at, but correctly notes that this was a reproduction on a grander scale without other creative element. What seems to concern him here is that the color scheme is a creative artifact in itself. He doesn't indicate whether this is his interpretation or based on actual precedent. Does anybody know of any precedent for this at all? --Moonriddengirl (talk) 13:11, 18 July 2011 (UTC)


 * Letter Edged in Black Inc., v. Public Building Commission of Chicago does seem to be the closest... and yes, those were photographs distributed by themselves, so it is not quite the same. The case your author cites, Alfred Bell v Catalda Fine Arts, was about whether a mezzotint of a public domain painting added enough originality to be separately copyrightable (it did), but that has little bearing on this question.  If you have a black and white original, and colorization done later (particularly by another author), that is a different situation.  Also, the "common law copyright" your source uses no longer exists; that was extinguished by the 1978 Copyright Act (it previously existed for unpublished works). As an academic note, I also don't think it would have applied to someone doing a colorization unless they had access to the original, color version -- otherwise it was their own separate work.  We can undoubtedly use a black-and-white version of the painting -- that much was definitely published -- and given the day and age, when color reproductions were relatively rare, I'm not sure that the distinction was all that important.  The American Tobacco Co. v. Werckmeister case ruled a painting was not "published" only by virtue of taking care that photographs and other copies were not allowed to be made during an exhibition; the direct implication was that by allowing photographs to be taken of a painting (which would have all been black and white in those days), even during an exhibition, the painting itself would have been deemed published.  In this case, the author presumably allowed such a photo to be published in a magazine.  Carl Lindberg (talk) 16:59, 18 July 2011 (UTC)
 * I agree that undoubtedly the black and white copy of the painting is free for use. I'm afraid that I can't give a clear opinion of whether I think the color painting is okay or not. The case you cite above predates in particulars, if not decision, the advent of the Autochrome Lumière; technology can change legal interpretations.


 * I do want to note, though, that from a legal standpoint here the best we can do is give educated guesses as to how a court would treat this. :) The only way to be sure how a case would come out in court is to note how it came out in court. Precedent is a very helpful predictor, as is expert opinion (although even those aren't guarantees). I can't find anything current. :/ --Moonriddengirl (talk) 11:33, 20 July 2011 (UTC)
 * Absolutely -- there is very rarely a sure thing... we are trying to make a best guess based on available evidence ;-) We can't do anything more than that. But while technology can definitely change things, the Werckmeister decision was in 1907 and we need to determine if it this was "published" by 1910 standards -- not sure the situation changed that much in three years, particularly if the technology was still under the control (patent) of one company and not widely used.  Granted the copyright law itself changed in the meantime, but I'm not sure that particular area did, as the "publication" concept (without further elaboration) was used in both the existing and 1909 laws. If Congress disagreed with the Werckmeister decision they had ample opportunity to make that change in the 1909 law, and did not.  Carl Lindberg (talk) 14:47, 20 July 2011 (UTC)

--Makeemlighter (talk) 12:47, 22 July 2011 (UTC)
 * Not enough support. It looks like we need a definitive answer about the copyright status. Makeemlighter (talk) 12:47, 22 July 2011 (UTC)